After FOIAed emails released, city’s Potomac Yard narrative changes

June 7, 2018

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An image generated by WMATA that shows the revised Potomac Yard Metro plan with a northwest entrance and planned southwest access point. The original plan called for three entrances.
(Image courtesy WMATA)

The narrative on the Potomac Yard Metro station design changed dramatically following the release of emails after a Freedom of Information Act request submitted by concerned residents. The emails reveal that city officials worked behind the scenes to suppress a rendering that showed the Metro’s southern entrance had been removed from the plans and tried to keep this knowledge from the public even after a WMATA official told them it wasn’t necessary.

The results, which yielded 500 pages of emails and 700 pages of redacted emails between City Manager Mark Jinks, members of city council, city staff and WMATA officials, reveal that WMATA didn’t consider the removal of the southern entrance from the plans to be “proprietary.”

Additionally, the documents indicate that the city wasn’t required to keep the elimination secret as part of WMATA’s procurement process or as a result of the non-disclosure agree- ment between WMATA and the city.

While WMATA’s media relations manager did not respond to requests for comment, Jinks said it was the city’s understanding – since June 2017 – that the southern entrance elimination must be kept secret.

That assertion has come into conflict, however, due to an April 9, 2018, email between John Thomas, acting chief engineer at WMATA, and Potomac Yard Metro Project Manager Jason Kacamburas.

“I meant to ask you about that last Wednesday evening at PYMIG when noted the secrecy required. The single entrance is not tied to any of the proposers as it is something we decided to do,” Thomas said in the April 9 email, sent at 1:06 p.m. “Therefore, it is not proprietary from a procurement stand point.”

Jinks said on Tuesday he didn’t know why Thomas said that. He said, in the city’s view, WMATA changed its stance on the secrecy needed for the southern entrance removal.

“WMATA, in our view, basically changed their position from where it was a year ago until now,” Jinks said. “I think they may have concluded the process and spurred it along. It was less risk to the procurement that the information be public.”

However, there’s no hard evidence of any meeting, communication or legal document where the city was told the southern entrance elimination had to be kept secret. The city’s response to residents’ request for proof of such an agreement was that “no records exist relating to your request.”

The response, signed by Assistant City Attorney Christina Zechman Brown, stated that the “city’s understanding of the need for strict confidentiality in that procurement process for the Potomac Yard Metro Station was based on meetings and telephone conversations with WMATA.”

Other emails show that city officials, including Deputy City Manager Emily Baker and Kacamburas, attempted to remove and replace a rendering that depicted one mezzanine – thus showing the south mezzanine had been removed – from a WMATA presentation released on April 9. Though they didn’t specify what the new rendering should be replaced with, any earlier rendering released to the public would have depicted the Metro station with two entrances.

“We have to pull it,” Baker said in an email to Kacamburas at 1:31 p.m. on April 9.

“We have clear direction from the city manager’s office we need to replace that station layout graphic. The city has not disclosed any design changes, and we are going to council [on April 11]. Even city council has not seen that image,” Kacamburas said at 1:38 p.m. on April 9 to Thomas.

When asked about the effort to replace the image, Jinks said he wasn’t involved in the process, despite Kacamburas saying that the direction to replace it came from the city manager’s office.

“I was not part of that process, so I can’t put it into context. If WMATA had to show something and was not going to show the one [mezzanine] station, the logic would be showing a two-entrance station, which is what we hoped to be able to build,” Jinks said.

Washington Business Journal published the new rendering showing one mezzanine in an article on April 11 about the budget of the Potomac Yard Metro increasing to $320 million. Though the article didn’t mention the change in access, the rendering generated widespread attention from residents and other news outlets.

Two days after Thomas informed Kacamburas that it wasn’t necessary to keep the southern entrance elimination a secret and a day after the rendering was published on the WBJ website, Jinks emailed several members of city staff, including Baker, Transit Services Division Chief Allan Fye, Transportation & Environmental Services Director Yon Lambert, T&ES Deputy Director Hillary Orr, Acting Director of Project Implementation Mitchell Bernstein and Ka- camburas, and told them not to speak with the press.

“If the press calls any of you, please say nothing and refer them to [Office of Communication & Public Information Director] Craig [Fifer],” Jinks said on April 12.

Missing from the emails obtained via FOIA are exchanges between Mayor Allison Silberberg, city council members and city staff and WMATA. The only non-redacted exchange released between a member of city council and Jinks is correspondence between Vice Mayor Justin Wilson and the city manager on July 14, 2017.

During the email exchange, Jinks forwarded Wilson a presentation about the Potomac Yard Metro project update. When Wilson asked if the proposal had been distributed to PYMIG, Jinks told him “while the design/bidding process may take longer, with one less ped[estrian] bridge and mezzanine to build the construction time should shrink by some yet to be determined time.”

The FOIAed email exchange begs the question of whether Wilson knew about the southern entrance removal before his council colleagues. Wilson, however, said all councilors knew bids were higher than anticipated, that costs had to be cut and that removing the southern entrance from the plans would be the most likely way to cut costs.

When asked about the June 2017 executive session referenced by Wilson, Jinks wouldn’t answer one way or the other if the southern entrance elimination was portrayed as the most likely option, saying he would let members of council speak for themselves regarding executive sessions.

“It’s fair to say once we got the bids in and we had discussions, we basically, between knowing the bids were over at the end of June, there were discussions about options and, as I said, the only big money-saving option with the station is how many entrances it had,” Jinks said.

Silberberg maintained that, while she recalls being informed in summer 2017 that costs were coming in higher for the Metro station and that council had asked staff to look for options to lower costs at that point, she didn’t know about the southern entrance elimination until March 2018.

“It wasn’t until late March of this year that they came back and said it was much higher and we asked for the options of what that would mean and if we had to lower the cost. That’s when we were told that they couldn’t actually tell us how much it would be and how much more it would be. We did push back but we were repeatedly told by staff and the city attorney because of the nondisclosure agreement,” Silberberg said. “They came back a week or two later and said it would be $320 million and we would lose the southern entrance.”

She said she didn’t know about the email between Jinks and Wilson until the emails were released.

“I didn’t know about that until I read it, like everyone else in the public. I’m reading these emails alongside everyone else,” Silberberg said.

When asked why Silberberg and Councilor Paul Smedberg, who has served on the WMATA board for two years, claimed to have found out that the southern entrance elimination was a possibility in spring 2018, Wilson said he couldn’t speak to what they remembered.

“I can’t speak to their recollections,” Wilson said. “Council was notified in an executive session in mid- June … What happened in June was we were notified that the bids had come back way high, and, essentially, we had a choice. We could restart the procurement, which would have added a couple of years and God knows how much money to the project, which, quite honestly, would have been fatal for the pro ect or we could work within the sealed bid procurement process to bring the costs down. They presented to us, as I recall, a series of options for lowering the costs on the project and asked if we were willing to entertain those options.”

In an earlier article, Wilson told the Times that he knew there were a number of options on the table for reducing the cost, but wasn’t certain until shortly before the memo was released. He said that’s still true.

“What I said was I wasn’t sure that was going to be re- moved until the spring and, honestly, it’s still not 100 percent sure. Because the contract hasn’t been issued, it’s still preliminary,” Wilson said.

A project update released to the public on July 17, 2017 said responses to WMATA’s request for proposals were received in March 2017, and WMATA was reviewing proposals and “working with respective design build vendors to evaluate the proposals including cost savings opportunities within the context of procurement.”

While the public memo said consideration of changes to the station design would occur in late 2018, it did not mention that removing the southern entrance was one of the possibilities.

Potomac Yard residents involved in filing the FOIA requests said they were disappointed by what the emails reveal about the city’s actions behind the scenes.

“The city seems to have worked directly to suppress information, even when WMATA indicated that wasn’t proprietary, which contradicts the whole narrative that was constructed by the city that they pushed for transparency, that they were pro-transparency,” Potomac Yard resident Rafael Lima said. “The only meaningful action we have seen is counter to that – it’s to decrease transparency.”

Adrien Lopez, who filed the request, echoed that sentiment.

“They were suppressing that information. WMATA really wanted to get that information out to the public and, in the end, the city said not to,” Lopez said. “I don’t know if that was just city staff or council was involved in that. We don’t know because we don’t have all the exchanges.”

Tanya Culbert, another resident and Potomac Yard Metro Implementation Group member, said that even if the city had the understanding that WMATA required secrecy for the southern entrance removal, there’s still no indication that they pushed for the information to be released to the public.

“This is a big enough deal with the public that they should’ve been actively ask- ing the question ‘Can we reveal this?’” Culbert said. “… These questions they asked WMATA after the public was outraged was what they should’ve been asking them, as public officials, last July.”

Lima said the city’s claim that WMATA prevented the information from being revealed serves the city’s own interests.

“In the end, this narrative serves the city the most,” Lima said. “Why bother with stakeholders if you can keep it all confidential and announce when it’s a done deal? At the minimum, the narrative serves their purpose as well, because it achieves just that.”

Lima said, without WMATA having released the information in the presentation to begin with, residents likely wouldn’t have any opportunity to have input in the decision.

“If the rendering hadn’t gone out, we would not know, we would not have a chance to influence [the decision] and we would have been in an even worse place as residents because the Metro would not have any access for us,” Lima said. “In the end, we could still be in a situation where the power line is not constructed and we would be paying taxes – special taxes, for that matter – on a Metro station that doesn’t even provide access to us.”

Lopez filed an appeal on Monday with the city to get access to the 704 pages of redacted emails. The emails, redacted under the procurement exemption, are redacted in full, from top to bottom, something Lopez pointed out in her appeal. In the appeal, Lopez urges the city to reconsider the redaction, saying there are no grounds to redact it under Virginia’s FOIA law. She also requested an accounting of the basis for exclusion and subject matter of the withheld portions.

Lopez, who works in information access for a bank in D.C., said the city’s broad use of the procurement exemption isn’t a viable excuse.

“If you want to black out portions of it, at least have a public version of it. … Give us something, give us the meeting dates. Even if you don’t want to give us the conversation that took place on the phone, just make a good faith effort to clarify,” Lopez said.

Jinks, when asked about the documents that were redacted, said that all 704 pages of redacted content is part of WMATA’s procurement process and that the information will be released after procurement is completed. He didn’t know if an additional cost would be assessed for that information. Residents paid $810 for the initial FOIA request.

“We’ll cross that bridge when we get to it,” Jinks said.

Jinks said, ultimately, it wasn’t city staff’s fault that information wasn’t released to the public sooner.

“We were trying to act in the best interests of the community and doing it in a procurement process that is not one we’re in charge of the rules for,” he said. “I think staff was put in a kind of circumstance where it’s a no-win situation.”

Lima and Lopez said they will continue to push forward, with the hopes that the city will provide an explanation and a solution on restoring southern access. Lima said he remains hopeful, but that his concerns have only increased.

“The narrative that they have been constructing is evolving every day and it is evolving with contradictions and those contradictions just raise more concerns,” Lima said. “It’s in their interest to release more information, to clarify, to go in-depth to ad- dress why this was kept confidential and clearly explain to those who are being hurt by this decision that this confidentiality.”

As of now, however, residents are concerned that this process reveals that something larger is wrong with city hall.

“There’s signs of an endemic problem, deeper than the Potomac Yard Metro,” Culbert said. “It’s no longer just the Metro. This is a catalyst to reveal some really serious issues.”

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